Circle Equipment Co.

National Labor Relations Board - Board Decisions

Jun 15, 1965

152 N.L.R.B. 1578 (N.L.R.B. 1965)

1578 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered , defaced, or covered by any other material.
Employees may communicate directly with the Board 's Regional Office, Room
706, Federal Office Building, 500 Zack Street , Tampa, Florida , Telephone No. 228-
7711, if they have any question concerning this notice or compliance with its
provisions.
Circle Equipment Co., Circle Paving Co., Circle Construction Co.
and Metropolitan D. C. Paving , Highway and Construction Ma-
terials Council , AFL-CIO . Case No. 5-CA-2979. June 15, 1965
DECISION AND ORDER
On March 1, 1965, Trial Examiner Joseph I. Nachman issued his
Decision in the above-entitled proceeding, finding that the Respondents
had engaged in and were engaging in certain unfair labor practices
and recommending that they cease and desist therefrom and take cer-
tain affirmative action, as set forth in the attached Trial Examiner's
Decision. Thereafter, the Respondents filed exceptions to the Trial
Examiner's Decision and a supporting brief.
Pursuant to the provisions of Section 3 (b) of the National Labor
Relations Act, as amended, the National Labor Relations Board has
delegated its powers in connection with this case to a three-member
panel [Members Fanning, Brown, and Jenkins].
The Board has reviewed the rulings of the Trial Examiner made at
the hearing, and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and brief, and the entire record
in the case, and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner.
ORDER
Pursuant to Section 10(c) of the National Labor Relations Act, as
amended, the National Labor Relations Board hereby adopts as its
Order the Recommended Order of the Trial Examiner, and orders that
Respondents, Circle Equipment Co., Circle Paving Co., and Circle
Construction Co., Washington, D.C., their officers, agents, successors,
and assigns, shall take the action set forth in the Trial Examiner's
Recommended Order.,
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
This complaint l under Section 10(b) of the National Labor Relations Act, as
amended (herein called the Act), involved allegations that Circle Equipment Co.,
Circle Paving Co., Circle Construction Co. (herein collectively called Respondent
'Issued November 19, upon a charge filed November 6. All dates are 1964, unless
otherwise stated.
152 NLRB No. 161.
CIRCLE EQUIPMENT CO., ETC. 1579
or Company ) violated Section 8(a) (5) and ( 1) of the Act by refusing to bargain
collectively with Metropolitan D C. Paving , Highway and Construction Materials
Council, AFL-CIO (herein called the Union ), recently certified by the National
Labor Relations Board as the representative of Respondent 's employees . Respond-
ent admits that it refused the Union 's demand for bargaining , contending that the
Board's certification is invalid , and for that reason it was under no duty to bargain.
A hearing on the issues framed by the complaint and answer was held before Trial
Examiner Joseph I. Nachman at Washington , D.C., on January 25 , 1965, with all
parties represented . Full opportunity was afforded the parties to adduce pertinent
evidence , but the parties elected to rely on the record in the representation proceed-
ing which is in evidence as an exhibit in this proceeding . Oral argument was waived.
A brief submitted by Respondent has been duly considered.
Upon the entire record in the case, I make the following:
FINDINGS OF FACT 2
1. THE UNFAIR LABOR PRACTICES ALLEGED
A. The facts
After the filing of a representation petition by the Union, the parties entered into
an agreement for consent election, which was approved by the Regional Director on
June 30.3 That agreement contained the following provisions:
1. . . . Said election shall be held in accordance with the National Labor Rela-
tions Act, the Board's Rules and Regulations ... provided that the determination
of the Regional Director shall be final and binding upon any question, ... raised
by any party hereto relating in any manner to the election....
6. . . . The method of investigation of objections and challenges, including
the question whether a hearing should be held in connection therewith, shall be
determined by the Regional Director, whose decision shall be final and binding.
The election, held July 17,4 resulted in a majority vote for the Union. Respond-
ent's authorized observer at the election signed the usual certificate that the balloting
was fairly conducted, and that all eligible voters were given the opportunity to vote
their ballots in secret.5 On July 22, Respondent filed objections to conduct affecting
z No issue as to commerce or labor organization is presented. The complaint alleges
and the answer admits the facts necessary to establish both of these elements I find
the facts as pleaded The complaint also alleges and the answer admits that the unit
agreed to by the parties in the representation proceeding, is appropriate. I so find The
unit so agreed to is: All employees employed by the Employers in their operations in
Metropolitan Washington, D C, excluding office clerical employees, guards, professional
employees, and supervisors as defined in the Act and temporary employees
S Case No 5-RC-4728.
4 Pursuant to provisions of the agreement for consent election, there were posted at
Respondent 's premises , one or more copies of a notice of election, which contained inter
alia the following provisions.
The election will be by SECRET ballot Voters will be allowed to vote without
interference, restraint, or coercion Electioneering will not be permitted at or near
the polling place Violations of these rules should be reported immediately to the
Regional Director or his agent in charge of the election
The chronology of events in the representation proceeding is as follows:
June 8------------------------- Petition filed.
June 30_______________________. Agreement for consent election approved.
July 17________________________ Election conducted ; revised tally of ballots showed
290 valid votes, 167 for the Union, 123 against,
and 38 challenged ballots
July 22________________________ Objections to conduct affecting the results of the
election filed by Respondent
September 8____________________ Report on objections and certification of represent-
ative
September 14___________________ Respondent petitioned for review by the Board.
September 16___________________ Board refused to review Regional Director's action.
1580 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the results of the election. The sole basis for these objections was that during the
election, as the employees were in line waiting to approach the desk manned by the
Board's agent and the observers, agents of the Union electioneered among the voters
urging them to vote for the Union. The Regional Director, after investigating the
matter, by a report issued September 8, overruled Respondent's objections and certi-
fied the Union as the collective-bargaining representative of the employees. Without
detailing the evidence considered by the Regional Director, his conclusion that
Respondent's objections were without merit, was based on his finding that: (1) No
specific "no-electioneering" area was designated, (2) there was no evidence that the
persons who spoke to the employees as they waited in line to vote were agents of the
Union, (3) the remarks made by the alleged agents of the Union were not coercive,
(4) no instructions of the Board's agent were disregarded, and (5) even assuming
that the persons who spoke to the waiting employees were agents of the Union, the
evidence showed that Respondent was aware of the activity it complained of, and
made no attempt to bring the same to the attention of the Board's agent.
On September 14, Respondent petitioned the Board for review of the aforemen-
tioned decision by the Regional Director, advancing basically the same contentions
theretofore urged upon the Regional Director. On September 16 the Board advised
Respondent that its request for review would not be considered because of the Board's
policy, where the parties have entered into a consent-election agreement containing
the provisions set forth above, not to intervene when one of the parties indicates
disapproval of the judgment exercised by the Regional Director.
B. Concluding findings
It has been the consistent policy of the Board,° approved by the courts,7 that in
the absence of fraud, misconduct, or such gross mistakes as imply bad faith on the
part of the Regional Director, his determination in consent-election matters will be
regarded as final, even though the Board, were it to consider the facts of the particu-
lar case, might have reached a different conclusion.
In the instant proceeding Respondent neither alleged, proved, nor offered to prove
fraud or misconduct on the part of the Regional Director. To support its contention
that the Regional Director's decision was based on such gross mistakes as to imply
bad faith, Respondent relies on the facts set forth in its objections, and the facts
stated in the Regional Director's decision, which the latter developed in the course
of his informal investigation. In short, Respondent's allegations of bad faith on the
part of the Regional Director, is no more than an attack on the latter's judgment and
the accuracy of his decision on the merits, I find nothing in the Regional Director's
decision, or elsewhere in this record, to indicate that the Regional Director made
such "gross mistakes" in applying Board precedents to the facts before him, as to
"imply bad faith" on his part. I so find and conclude. Assuming, arguendo, that
the Board might have reached a conclusion different from that reached by the
Regional Director, had it passed on the merits of Respondent's objections, the con-
clusions of the Regional Director do not indicate such gross error as to support an
implication of bad faith on his part. Accordingly, it follows that Respondent has
established no valid reason for failing to give effect to the certification of the Union
as the collective-bargaining representative of the employees involved, and that by its
admitted refusal to bargain with the Union pursuant to the latter's request, Respond-
ent violated and continues to violate Section 8(a)(5) and (1) of the Act, as alleged
in the complaint.
II. THE REMEDY
Having found that Respondent engaged in certain unfair labor practices as set
forth above, I shall recommend that it cease and desist therefrom, and take affirma-
tive action designed to eradicate the effect thereof and to effectuate the policies of
the Act.
Upon the foregoing findings of fact, and upon the entire record in the case, I make
the following:
" See McMullen Leavens Company , 83 NLRB 948 • General Armature & Manufacturing
Co, 89 NLRB 654; The Chardon Telephone Company, 139 NLRB 1435; Sumner Sand
& Gravel Company, 128 NLRB 1368.
' See N L R B. v. Sumner Sand & Gravel Company, 293 F. 2d 754 (C A. 9) ; N L R B.
v. Parkhurst Manufacturing Company , Inc., 317 F 2d 513 (C.A. 8) ; Elm City Broad-
casting Corp . v. N.L.R.B., 228 F 2d 483 (C A. 2)
CIRCLE EQUIPMENT CO., ETC. 1581
CONCLUSIONS OF LAW
1. Respondent is an employer within the meaning of Section 2(2) of the Act, and
is engaged in commerce within the meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the meaning of Section 2(5) of the
Act.
3. All employees employed by the Employer in their operations in Metropolitan
Washington, D.C., excluding office clerical employees, guards, professional employ-
ees, and supervisors as defined in the Act and temporary employees, constitute a unit
appropriate for the purposes of collective bargaining within the meaning of Section
9(b) of the Act.
4. At all times since September 8, the Union has been the duly certified collective-
bargaining representative of Respondent's employees in the aforesaid unit.
5 By refusing, on and after October 21, to recognize and bargain with the Union
as the exclusive representative of its employees in the aforesaid unit, Respondent
has engaged in and is engaging in unfair labor practices proscribed by Section 8(a) (5)
and (1) of the Act.
6. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and conclusions of law, and pur-
suant to Section 10(c) of the National Labor Relations Act, as amended, it is hereby
recommended that the Respondents, Circle Equipment Co., Circle Paving Co., and
Circle Construction Co., their officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Refusing to bargain collectively with Metropolitan D.C. Paving, Highway and
Construction Materials Council, AFL-CIO, as the exclusive collective-bargaining
representative of their employees in a unit composed of all employees in their Metro-
politan Washington, D.C., operations, excluding office clerical employees, guards,
professional employees, and supervisors as defined in said Act and temporary
employees, with respect to rates of pay, wages, hours of employment, and other terms
and conditions of employment.
(b) In any like or related manner interfering with, restraining, or coercing employ-
ees in the exercise of their right to self-organization, to form, join, or assist labor
organizations, to bargain collectively through representatives of their own choosing,
and to engage in other concerted activities for the purposes of collective bargaining
or other mutual aid or protection, or to refrain from any and all such activities.
2. Take the following affirmative action found necessary to effectuate the policies
of said Act:
(a) Upon request, bargain collectively with Metropolitan D.C. Paving, Highway
and Construction Materials Council, AFL-CIO, as the exclusive representative of
the employees in the aforesaid unit, and embody any understanding reached into a
signed contract.
(b) Post at its places of business in the District of Columbia, copies of the
attached notice marked "Appendix." 8 Copies of said notice, to be furnished by
the Regional Director for Region 5, shall, after being duly signed by an authorized
representative of Respondents, be posted by Respondents immediately upon receipt
thereof, and be maintained by them for 60 consecutive days thereafter, in conspic-
uous places, including all places where notices to employees are customarily posted.
Reasonable steps shall be taken by Respondents to insure that said notices are not
altered, defaced, or covered by any other material.
(c) Notify the said Regional Director for Region 5, in writing, within 20 days
from the date hereof, what steps Respondents have taken to comply herewith .9
I In the event that this Recommended Order be adopted by the Board , the words "a
Decision and Order" shall be substituted for the words " the Recommended Order of a
Trial Examiner" in the notice. In the further event that the Board 's Order be enforced
by a decree of a United States Court of Appeals , the words " a Decree of the United States
Court of Appeals , Enforcing an Order" shall be substituted for the words "a Decision
and Order."
e If this Recommended Order be adopted by the Board , this provision shall be modified
to read* "Notify said Regional Director, in writing , within 10 days from the date of this
Order , what steps Respondents have taken to comply herewith."
1582 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of, the National Labor Rela-
tions Act, as amended, we hereby notify our employees that:
WE WILL, upon request, bargain collectively with Metropolitan D.C. Paving,
Highway and Construction Materials Council, AFL-CIO, as the exclusive rep-
resentative of our employees in a unit composed of all employees in our
Metropolitan Washington, D.C., operations, excluding office clerical employees,
guards, professional employees, and supervisors as defined in the National Labor
Relations Act and temporary employees, with respect to rates of pay and other
terms and conditions of employment, and, if an agreement is reached, embody
the same into a signed contract.
WE WILL NOT by refusing to bargain collectively with the collective-bargaining
representative of our employees in the aforesaid unit, or in any like or related
manner, interfere with, restrain, or coerce our employees in the exercise of
their right to self-organization, to form labor organizations, to join or assist
the above-named Union or any other labor organization of our employees, to
bargain collectively through representatives of their own choosing, or to engage
in other concerted activities for the purposes of mutual aid, or to refrain from
any and all such activities.
All our employees are free to become or remain, or refrain from becoming or
remaining, members of the above-named or any other labor organization.
CIRCLE EQUIPMENT CO.
Employer.
Dated------------------- By-=-----------------------------------------
(Representative) (Title)
CIRCLE PAVING CO.
Employer.
Dated------------------- By-------------------------------------------
(Representative) (Title)
CIRCLE CONSTRUCTION CO.
Employer.
Dated------------------- By-------------------------------------------
(Representative) (Title)
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered, defaced, or covered by any other material.
Employees may communicate directly with the Board's Regional Office, Sixth
Floor, 707 North Calvert Street, Baltimore, Maryland, Telephone No. 752-8460,
Extension 2100, if they have any question concerning this notice or compliance with
its provisions.
Bricklayers and Masons ' Union Local No. 2 of Detroit, Michigan,
Bricklayers , Masons and Plasterers ' International Union of
America, AFL-CIO; and Metropolitan Area Executive Commit-
tee of Bricklayers , Masons and Plasterers ' Union of America,
AFL-CIO and Chris. Paschen Company , Inc. and John Ruisaard
and Winifred Ruisaard , a Co-Partnership , d/b/a John Ruisaard
Maintenance Company. Case No. 7-CB-1227. June 15, 1965
DECISION AND ORDER
On January 26, 1965, Trial Examiner Paul Bisgyer issued his Deci-
sion in the above-entitled case, finding that the Respondents, herein-
152 NLRB No. 163.